HOUSE AMENDMENT
Bill No. HB 1635 Barcode 374085
Amendment No. ___ (for drafter's use only)
CHAMBER ACTION
Senate House
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5 ORIGINAL STAMP BELOW
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11 The Committee on Natural Resources & Environmental Protection
12 offered the following:
13
14 Amendment (with title amendment)
15 Remove from the bill: Everything after the enacting clause
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17 and insert in lieu thereof:
18 Section 1. Paragraph (k) is added to subsection (3) of
19 section 369.25, Florida Statutes, to read:
20 369.25 Aquatic plants; definitions; permits; powers of
21 department; penalties.--
22 (3) The department has the following powers:
23 (k) To enforce this chapter in the same manner and to
24 the same extent as provided in ss. 403.121, 403.131, 403.141,
25 and 403.161.
26 Section 2. Section 403.121, Florida Statutes, is
27 amended to read:
28 403.121 Enforcement; procedure; remedies.--The
29 department shall have the following judicial and
30 administrative remedies available to it for violations of this
31 chapter, as specified in s. 403.161(1).
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HOUSE AMENDMENT
Bill No. HB 1635 Barcode 374085
Amendment No. ___ (for drafter's use only)
1 (1) Judicial remedies:
2 (a) The department may institute a civil action in a
3 court of competent jurisdiction to establish liability and to
4 recover damages for any injury to the air, waters, or
5 property, including animal, plant, and aquatic life, of the
6 state caused by any violation.
7 (b) The department may institute a civil action in a
8 court of competent jurisdiction to impose and to recover a
9 civil penalty for each violation in an amount of not more than
10 $10,000 per offense. However, the court may receive evidence
11 in mitigation. Each day during any portion of which such
12 violation occurs constitutes a separate offense.
13 (c) Except as provided in paragraph (2)(c), it shall
14 not be a defense to, or ground for dismissal of, these
15 judicial remedies for damages and civil penalties that the
16 department has failed to exhaust its administrative remedies,
17 has failed to serve a notice of violation, or has failed to
18 hold an administrative hearing prior to the institution of a
19 civil action.
20 (2) Administrative remedies:
21 (a) The department may institute an administrative
22 proceeding to establish liability and to recover damages for
23 any injury to the air, waters, or property, including animal,
24 plant, or aquatic life, of the state caused by any violation.
25 The department may order that the violator pay a specified sum
26 as damages to the state. Judgment for the amount of damages
27 determined by the department may be entered in any court
28 having jurisdiction thereof and may be enforced as any other
29 judgment.
30 (b) If the department has reason to believe a
31 violation has occurred, it may institute an administrative
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1 proceeding to order the prevention, abatement, or control of
2 the conditions creating the violation or other appropriate
3 corrective action. Except for violations involving hazardous
4 wastes, asbestos, or underground injection, the department
5 shall proceed administratively in all cases in which the
6 department seeks administrative penalties that do not exceed
7 $10,000 per assessment as calculated in accordance with
8 subsections (3), (4), (5), (6), and (7). The department shall
9 not impose administrative penalties in excess of $10,000 in a
10 notice of violation. The department shall not have more than
11 one notice of violation seeking administrative penalties
12 pending against the same party at the same time unless the
13 violations occurred at a different site or the violations were
14 discovered by the department subsequent to the filing of a
15 previous notice of violation.
16 (c) An administrative proceeding shall be instituted
17 by the department's serving of a written notice of violation
18 upon the alleged violator by certified mail. If the department
19 is unable to effect service by certified mail, the notice of
20 violation may be hand-delivered or personally served in
21 accordance with chapter 48. The notice shall specify the
22 provision of the law, rule, regulation, permit, certification,
23 or order of the department alleged to be violated and the
24 facts alleged to constitute a violation thereof. An order for
25 corrective action, penalty assessment, or damages may be
26 included with the notice. When the department is seeking to
27 impose an administrative penalty for any violation by issuing
28 a notice of violation, any corrective action needed to correct
29 the violation or damages caused by the violation must be
30 pursued in the notice of violation or they are waived.
31 However, no order shall become effective until after service
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Bill No. HB 1635 Barcode 374085
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1 and an administrative hearing, if requested within 20 days
2 after service. Failure to request an administrative hearing
3 within this time period shall constitute a waiver thereof,
4 unless the respondent files a written notice with the
5 department within this time period opting out of the
6 administrative process initiated by the department to impose
7 administrative penalties. Any respondent choosing to opt out
8 of the administrative process initiated by the department in
9 an action that seeks the imposition of administrative
10 penalties must file a written notice with the department
11 within 20 days after service of the notice of violation opting
12 out of the administrative process. A respondent's decision to
13 opt out of the administrative process does not preclude the
14 department from initiating a state court action seeking
15 injunctive relief, damages and the judicial imposition of
16 civil penalties.
17 (d) If a person timely files a petition challenging a
18 notice of violation, that person will thereafter be referred
19 to as the respondent. The hearing requested by the respondent
20 shall be held within 180 days after the department has
21 referred the initial petition to the Division of
22 Administrative Hearings unless the parties agree to a later
23 date. The department has the burden of proving with the
24 preponderance of the evidence that the respondent is
25 responsible for the violation. No administrative penalties
26 should be imposed unless the department satisfies that burden.
27 Following the close of the hearing, the administrative law
28 judge shall issue a final order on all matters, including the
29 imposition of an administrative penalty. When the department
30 seeks to enforce that portion of a final order imposing
31 administrative penalties pursuant to s. 120.69, the respondent
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1 shall not assert as a defense the inappropriateness of the
2 administrative remedy. The department retains its final-order
3 authority in all administrative actions that do not request
4 the imposition of administrative penalties.
5 (e) After filing a petition requesting a formal
6 hearing in response to a notice of violation in which the
7 department imposes an administrative penalty, a respondent may
8 request that a private mediator be appointed to mediate the
9 dispute by contacting the Florida Conflict Resolution
10 Consortium within 10 days after receipt of the Initial Order
11 from the administrative law judge. The Florida Conflict
12 Resolution Consortium shall pay all of the costs of the
13 mediator and for up to 8 hours of the mediator's time per case
14 at $150 per hour. Upon notice from the respondent, the Florida
15 Conflict Resolution Consortium shall provide a panel of
16 possible mediators from the area in which the hearing on the
17 petition would be heard to the respondent. The respondent
18 shall select the mediator and notify the Florida Conflict
19 Resolution Consortium of the selection within 15 days of
20 receipt of the proposed panel of mediators. The Florida
21 Conflict Resolution Consortium shall provide all of the
22 administrative support for the mediation process. The
23 mediation must be completed at least 15 days before the
24 final-hearing date set by the administrative law judge.
25 (f) In any administrative proceeding brought by the
26 department, the prevailing party shall recover all costs as
27 provided in ss. 57.041 and 57.071. The costs must be included
28 in the final order. The respondent is the prevailing party
29 when an order is entered awarding no penalties to the
30 department and such order has not been reversed on appeal or
31 the time for seeking judicial review has expired. The
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Amendment No. ___ (for drafter's use only)
1 respondent shall be entitled to an award of attorney's fees if
2 the administrative law judge determines that the notice of
3 violation initiated by the department seeking the imposition
4 of administrative penalties was not substantially justified as
5 defined in s. 57.111(3)(e). No award of attorney's fees as
6 provided by this subsection shall exceed $15,000.
7 (g)(d) Nothing herein shall be construed as preventing
8 any other legal or administrative action in accordance with
9 law. Nothing in this subsection shall limit the department's
10 authority provided in ss. 403.121, 403.131, and 403.141, to
11 judicially pursue injunctive relief. When the department
12 exercises its authority to judicially pursue injunctive
13 relief, penalties in any amount up to the statutory maximum
14 sought by the department must be pursued as part of the state
15 court action and not by initiating a separate administrative
16 proceeding. The department retains the authority to judicially
17 pursue penalties in excess of $10,000 for violations not
18 specifically included in the administrative penalty schedule,
19 or for multiple or multi-day violations alleged to exceed a
20 total of $10,000. The department also retains the authority
21 provided in ss. 403.121, 403.131, and 403.141, to judicially
22 pursue injunctive relief and damages, if a notice of violation
23 seeking the imposition of administrative penalties has not
24 been issued. The department has the authority to enter into a
25 settlement, either before or after initiating a notice of
26 violation, and the settlement may include a penalty amount
27 different from the administrative penalty schedule. Any case
28 filed in state court because it is alleged to exceed a total
29 of $10,000 in penalties may be settled in the court action for
30 less than $10,000.
31 (h) Chapter 120, Florida Statutes, shall apply to any
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Bill No. HB 1635 Barcode 374085
Amendment No. ___ (for drafter's use only)
1 administrative action taken by the department or any delegated
2 program pursuing administrative penalties in accordance with
3 this section.
4 (3) Except for violations involving hazardous wastes,
5 asbestos, or underground injection, administrative penalties
6 must be calculated according to the following schedule:
7 (a) For a drinking water contamination violation, the
8 department shall assess a penalty of $2,000 for a Maximum
9 Containment Level (MCL) violation; plus $1,000 if the
10 violation is for a primary inorganic, organic, or radiological
11 Maximum Contaminant Level or it is a fecal coliform bacteria
12 violation; plus $1,000 if the violation occurs at a community
13 water system; and plus $1,000 if any Maximum Contaminant Level
14 is exceeded by more than 100 percent. For failure to obtain a
15 clearance letter prior to placing a drinking water system into
16 service when the system would not have been eligible for
17 clearance - $3,000.
18 (b) For failure to obtain a required wastewater
19 permit, other than a permit required for surface water
20 discharge, the department shall assess a penalty of $1,000.
21 For a domestic or industrial wastewater violation not
22 involving a surfacewater or groundwater quality violation, the
23 department shall assess a penalty of $2,000 for an unpermitted
24 or unauthorized discharge or effluent-limitation exceedance.
25 For an unpermitted or unauthorized discharge or
26 effluent-limitation exceedance that resulted in a surfacewater
27 or groundwater quality violation, the department shall assess
28 a penalty of $5,000.
29 (c) For a dredge and fill or stormwater violation, the
30 department shall assess a penalty of $1,000 for unpermitted or
31 unauthorized dredging or filling or unauthorized construction
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Bill No. HB 1635 Barcode 374085
Amendment No. ___ (for drafter's use only)
1 of a stormwater management system against the person or
2 persons responsible for the illegal dredging or filling, or
3 unauthorized construction of a stormwater management system;
4 plus $2,000 if the dredging or filling occurs in an Aquatic
5 Preserve, Outstanding Florida Water, conservation easement, or
6 Class I or Class II surfacewater; plus $1,000 if the area
7 dredged or filled is greater than one-quarter acre but less
8 than one-half acre, and plus $1,000 if the area dredged or
9 filled is greater than one-half acre but less than one acre.
10 The administrative penalty schedule shall not apply to a
11 dredge and fill violation if the area dredged or filled
12 exceeds one acre. The department retains the authority to seek
13 the judicial imposition of civil penalties for all dredge and
14 fill violations involving more than one acre. The department
15 shall assess a penalty of $3,000 for the failure to complete
16 required mitigation, failure to record a required conservation
17 easement , or for a water quality violation resulting from
18 dredging or filling activities, stormwater construction
19 activities or failure of a stormwater treatment facility. For
20 stormwater management systems serving less than five acres,
21 the department shall assess a penalty of $2,000 for the
22 failure to properly or timely construct a stormwater
23 management system. In addition to the penalties authorized in
24 this subsection, the department shall assess a penalty of
25 $5,000 per violation against the contractor or agent of the
26 owner or tenant that conducts unpermitted or unauthorized
27 dredging or filling.
28 (d) For mangrove trimming or alteration violations,
29 the department shall assess a penalty of $5,000 per violation
30 against the contractor or agent of the owner or tenant that
31 conducts mangrove trimming or alteration without a permit as
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Bill No. HB 1635 Barcode 374085
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1 required by s. 403.9328.
2 (e) For solid waste violations, the department shall
3 assess a penalty of $2,000 for the unpermitted or unauthorized
4 disposal or storage of solid waste; plus $1,000 if the solid
5 waste is Class I or Class III (excluding yard trash) or if the
6 solid waste is construction and demolition debris in excess of
7 20 cubic yards; plus $1,000 if the waste is disposed of or
8 stored in any natural or artificial body of water or within
9 500 feet of a potable water well; plus $1,000 if the waste
10 contains PCB at a concentration of 50 parts per million or
11 greater; untreated biomedical waste; friable asbestos greater
12 than 1 cubic meter that is not wetted, bagged, and covered,
13 used oil greater than 25 gallons; or 10 or more lead acid
14 batteries. The department shall assess a penalty of $3,000 for
15 failure to properly maintain leachate control; unauthorized
16 burning; failure to have a trained spotter on duty at the
17 working face when accepting waste; failure to provide access
18 control for three consecutive inspections. The department
19 shall assess a penalty of $2,000 for failure to construct or
20 maintain a required stormwater management system.
21 (f) For an air emission violation, the department
22 shall assess a penalty of $1,000 for an unpermitted or
23 unauthorized air emission or an air-emission-permit
24 exceedance, plus $1,000 if the emission results in an air
25 quality violation, plus $3,000 if the emission was from a
26 major source and the source was major for the pollutant in
27 violation; plus $1,000 if the emission was more than 150
28 percent of the allowable level.
29 (g) For storage tank system and petroleum
30 contamination violations, the department shall assess a
31 penalty of $5,000 for failure to empty a damaged storage
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Bill No. HB 1635 Barcode 374085
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1 system as necessary to ensure that a release does not occur
2 until repairs to the storage system are completed; when a
3 release has occurred from that storage tank system; failure to
4 timely recover free product; or for failure to conduct
5 remediation or monitoring activities until a no-further-action
6 or site-rehabilitation completion order has been issued. The
7 department shall assess a penalty of $3,000 for failure to
8 timely upgrade a storage tank system. The department shall
9 assess a penalty of $2,000 for failure to conduct or maintain
10 required release detection; failure to timely investigate a
11 suspected release from a storage system; depositing motor fuel
12 into an unregistered storage tank system; failure to timely
13 assess or remediate petroleum contamination; or failure to
14 properly install a storage tank system. The department shall
15 assess a penalty of $1,000 for failure to properly operate,
16 maintain, or close a storage tank system.
17 (3)(a) In addition to any judicial or administrative
18 remedy authorized by this part, the department may assess a
19 noncompliance fee for failure of any owner or operator of a
20 domestic wastewater treatment facility to comply with a permit
21 condition that requires the submittal of monthly operating
22 reports or the reporting of the characteristics of the waste
23 stream or the effects of the facility on surface or ground
24 water. For the first and second violations of the reporting
25 requirements, the fee shall not be assessed until the
26 department has given the owner or operator at least 30 days to
27 comply with the reporting requirement. The time shall not
28 begin until the department has given the owner or operator
29 written notice of the facts alleged to constitute the
30 reporting violation, the specific provision of law, rule, or
31 order alleged to have been violated by the owner or operator,
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1 the corrective action needed to bring the facility into
2 compliance, and the potential penalties that may be imposed as
3 a result of the owner's or operator's failure to comply with
4 the notice. For subsequent violations, the department does
5 not have to provide 30 days' written notice of the violations
6 prior to assessing a noncompliance fee, except as follows:
7 1. If any additional reporting violations occur prior
8 to the expiration of either of the 30-day notices issued by
9 the department, the department must provide the owner or
10 operator with 30 days' written notice to correct these
11 violations as well.
12 2. Upon the renewal of the permit, the department
13 shall reinstate the 30-day notice requirements provided in
14 this subsection prior to assessing a noncompliance fee during
15 the new permit period.
16 (b) At the time of assessment of a noncompliance fee,
17 the department shall give the owner or operator written notice
18 setting forth the amount assessed, the specific provision of
19 law, rule, or order alleged to be violated, the facts alleged
20 to constitute the violation, the corrective action needed to
21 bring the party into compliance, and the rights available
22 under chapter 120 to challenge the assessment. The assessment
23 shall be final and effective unless an administrative
24 proceeding is requested within 20 days after receipt of the
25 written notice, and shall be enforceable pursuant to s.
26 120.69. Once the assessment has become final and effective,
27 the department may refuse to issue, modify, transfer, or renew
28 a permit to the facility until the fee has been paid.
29 (c) Before assessing a noncompliance fee, the
30 department shall adopt rules to implement the provisions of
31 this subsection. The rules shall establish specific procedures
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1 and assessment amounts for noncompliance fees authorized by
2 paragraph (a). Noncompliance fees shall be set on a sliding
3 scale based upon the type of violation, the degree of
4 noncompliance, and the potential for harm. Such rules shall
5 also authorize the application of adjustment factors
6 subsequent to the initial assessment to increase or decrease
7 the total amount assessed, such as the good faith efforts or
8 the lack of good faith efforts of the owner or operator to
9 comply with the reporting requirement, the lack of or degree
10 of willfulness or negligence on the part of the owner or
11 operator, the economic benefits associated with the owner's or
12 operator's failure to comply, the owner's or operator's
13 previous history of reporting violations, and the owner's or
14 operator's ability to pay the noncompliance fee. No
15 noncompliance fee shall exceed $250, and total noncompliance
16 fees assessed shall not exceed $1,000 per assessment for all
17 reporting violations attributable to a specific facility
18 during any one month. No noncompliance fee may be assessed
19 unless the department has, within 90 days of the reporting
20 violation, provided the owner or operator written notice of
21 the violation.
22 (d) The department's assessment of a noncompliance fee
23 shall be in lieu of any civil action which may be instituted
24 by the department in a court of competent jurisdiction to
25 impose and recover civil penalties for any violation that
26 resulted in the fee assessment, unless the department
27 initiates a civil action for nonpayment of a fee properly
28 assessed pursuant to this subsection.
29 (e) Fees collected pursuant to this subsection shall
30 be deposited in the Ecosystem Management and Restoration Trust
31 Fund. The department may use a portion of the fund to
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1 contract for services to help in the collection of the fees
2 assessed pursuant to this subsection.
3 (4) In an administrative proceeding, in addition to
4 the penalties that may be assessed under subsection (3), the
5 department shall assess administrative penalties according to
6 the following schedule:
7 (a) For failure to satisfy financial responsibility
8 requirements or for violation of s. 377.371(1), $5,000.
9 (b) For failure to install, maintain, or use a
10 required pollution control system or device, $4,000.
11 (c) For failure to obtain a required permit prior to
12 construction or modification, $3,000.
13 (d) For failure to conduct required monitoring or
14 testing; failure to conduct required release detection;
15 failure to construct in compliance with a permit, $2,000.
16 (e) For failure to maintain required staff to respond
17 to emergencies; failure to conduct required training; failure
18 to prepare, maintain, or update required contingency plans;
19 failure to adequately respond to emergencies to bring an
20 emergency situation under control; or failure to submit
21 required notification to the department, $1,000.
22 (f) For failure to prepare, submit, maintain, or use
23 required reports or other required documentation, $500.
24 (5) For failure to comply with any other department
25 regulatory statute or rule requirement not otherwise
26 identified in this section, the department may assess a
27 penalty of $500.
28 (6) For each additional day during which a violation
29 occurs, the administrative penalties in subsection (3),
30 subsection (4), and subsection (5) may be assessed per day per
31 violation.
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1 (7) The history of noncompliance of the violator for
2 any previous violation resulting in an executed consent order,
3 but not including a consent order entered into without a
4 finding of violation, final order or judgment after the
5 effective date of this law involving the imposition of $2,000
6 or more in penalties shall be taken into consideration in the
7 following manner:
8 (a) One previous such violation within 5 years prior
9 to the filing of the notice of violation will result in a 25
10 percent per day increase in the scheduled administrative
11 penalty.
12 (b) Two previous such violations within 5 years prior
13 to the filing of the notice of violation will result in a 50
14 percent per day increase in the scheduled administrative
15 penalty.
16 (c) Three or more previous such violations within 5
17 years prior to the filing of the notice of violation will
18 result in a 100 percent per day increase in the scheduled
19 administrative penalty.
20 (8) The direct economic benefit gained by the violator
21 from the violation shall be added to the scheduled
22 administrative penalty. The total administrative penalty,
23 including any economic benefit added to the scheduled
24 administrative penalty, shall not exceed $10,000.
25 (9) The administrative penalties assessed for any
26 particular violation shall not exceed $5,000 against any one
27 violator, unless the violator has a history of noncompliance,
28 the economic benefit of the violation exceeds $5,000, or there
29 are multi-day violations. The total administrative penalties
30 shall not exceed $10,000 per assessment for all violations
31 attributable to a specific person in the notice of violation.
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1 (10) The administrative law judge may receive evidence
2 in mitigation. The penalties identified in subsection (3),
3 subsection (4), and subsection (5) may be reduced up to 50
4 percent by the administrative law judge for mitigating
5 circumstances, including good faith efforts to comply prior to
6 or after discovery of the violations by the department. Upon
7 an affirmative finding that the violation was caused by
8 circumstances beyond the reasonable control of the respondent
9 and could not have been prevented by respondent's due
10 diligence, the administrative law judge may further reduce the
11 penalty.
12 (11) Penalties collected pursuant to this section
13 shall be deposited in the Ecosystem Management and Restoration
14 Trust Fund or other trust fund designated by statute and shall
15 be used to fund the restoration of ecosystems, or polluted
16 areas of the state, as defined by the department, to their
17 condition before pollution occurred. The Florida Conflict
18 Resolution Consortium may use a portion of the fund to
19 administer the mediation process provided in paragraph (2)(e)
20 and to contract with private mediators for administrative
21 penalty cases.
22 (12) The purpose of the administrative penalty
23 schedule and process is to provide a more predictable and
24 efficient manner for individuals and businesses to resolve
25 relatively minor environmental disputes. Nothing in subsection
26 (3), subsection (4), subsection (5), subsection (6), or
27 subsection (7) shall be construed as limiting a state court in
28 the assessment of damages. The administrative penalty schedule
29 does not apply to the judicial imposition of civil penalties
30 in state court as provided in this section.
31 Section 3. Section 403.131, Florida Statutes, is
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1 amended to read:
2 403.131 Injunctive relief, cumulative remedies.--
3 (1) The department may institute a civil action in a
4 court of competent jurisdiction to seek injunctive relief to
5 enforce compliance with this chapter or any rule, regulation,
6 permit certification, or order; to enjoin any violation
7 specified in s. 403.161(1); and to seek injunctive relief to
8 prevent irreparable injury to the air, waters, and property,
9 including animal, plant, and aquatic life, of the state and to
10 protect human health, safety, and welfare caused or threatened
11 by any violation.
12 (2) All the judicial and administrative remedies to
13 recover damages and penalties in this section and s. 403.121
14 are independent and cumulative except that the judicial and
15 administrative remedies to recover damages are alternative and
16 mutually exclusive.
17 Section 4. Subsection (3) of section 403.727, Florida
18 Statutes, is amended to read:
19 403.727 Violations; defenses, penalties, and
20 remedies.--
21 (3) Violations of the provisions of this act are
22 punishable as follows:
23 (a) Any person who violates the provisions of this
24 act, the rules or orders of the department, or the conditions
25 of a permit is liable to the state for any damages specified
26 in s. 403.141 and for a civil penalty of not more than $50,000
27 for each day of continued violation, except as otherwise
28 provided herein. The department may revoke any permit issued
29 to the violator. In any action by the department against a
30 small hazardous waste generator for the improper disposal of
31 hazardous wastes, a rebuttable presumption of improper
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1 disposal shall be created if the generator was notified
2 pursuant to s. 403.7234; the generator shall then have the
3 burden of proving that the disposal was proper. If the
4 generator was not so notified, the burden of proving improper
5 disposal shall be placed upon the department.
6 (b) Any person who knowingly or by exhibiting reckless
7 indifference or gross careless disregard for human health:
8 1. Transports or causes to be transported any
9 hazardous waste, as defined in s. 403.703, to a facility which
10 does not have a permit when such a permit is required under s.
11 403.707 or s. 403.722;
12 2. Disposes of, treats, or stores hazardous waste:
13 a. At any place but a hazardous waste facility which
14 has a current and valid permit pursuant to s. 403.722;
15 b. In knowing violation of any material condition or
16 requirement of such permit if such violation has a substantial
17 likelihood of endangering human health, animal or plant life,
18 or property; or
19 c. In knowing violation of any material condition or
20 requirement of any applicable rule or standard if such
21 violation has a substantial likelihood of endangering human
22 health, animal or plant life, or property;
23 3. Makes any false statement or representation or
24 knowingly omits material information in any hazardous waste
25 application, label, manifest, record, report, permit, or other
26 document required by this act;
27 4. Generates, stores, treats, transports, disposes of,
28 or otherwise handles any hazardous waste and who knowingly
29 destroys, alters, conceals, or fails to file any record,
30 application, manifest, report, or other document required to
31 be maintained or filed for purposes of compliance with this
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1 act; or
2 5. Transports without a manifest, or causes to be
3 transported without a manifest, any hazardous waste required
4 by rules adopted by the department to be accompanied by a
5 manifest
6
7 is, upon conviction, guilty of a felony of the third degree,
8 punishable for the first such conviction by a fine of not more
9 than $50,000 for each day of violation or imprisonment not to
10 exceed 5 years, or both, and for any subsequent conviction by
11 a fine of not more than $100,000 per day of violation or
12 imprisonment of not more than 10 years, or both.
13 (c)1. As used in this paragraph, "Class II violation"
14 means a violation of this part, or the rules promulgated
15 pursuant to this part, which pertains to small quantity
16 generators as defined by applicable department rules and which
17 does not result in a discharge or serious threat of a
18 discharge of hazardous waste to the environment, or does not
19 involve the failure to ensure that groundwater will be
20 protected or that hazardous waste will be destined for and
21 delivered to permitted facilities. Class II violations shall
22 include, but need not be limited to, the failure to submit
23 manifest exception reports in a timely manner, failure to
24 provide a generator's United States Environmental Protection
25 Agency identification number on the manifest, failure to
26 maintain complete personnel training records, and failure to
27 meet inspection schedule requirements for tanks and containers
28 that hold hazardous waste.
29 2. In addition to any other judicial or administrative
30 remedy authorized by this part, the department may assess a
31 noncompliance fee for any Class II violation by a small
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1 quantity generator. For the first and second violations, the
2 fee shall not be assessed until the generator has failed to
3 comply after notice of noncompliance and has been given a
4 reasonable time to comply. If the owner or operator fails
5 after three or more notifications to comply with the
6 requirement to correct the Class II violation, the department
7 may assess the fee without waiting for compliance.
8 3. At the time of assessment of a noncompliance fee,
9 the department shall give the small quantity generator written
10 notice setting forth the amount assessed, the specific
11 provision of law, rule, or order alleged to be violated, the
12 facts alleged to constitute the violation, the corrective
13 action needed to bring the party into compliance, and the
14 rights available under chapter 120 to challenge the
15 assessment. The assessment shall be final and effective
16 unless an administrative proceeding is requested within 20
17 days after receipt of the written notice, and shall be
18 enforceable pursuant to s. 120.69. Once the assessment has
19 become final and effective, the department shall refuse to
20 issue, modify, transfer, or renew a permit or issue an
21 identification number to the facility until the fee has been
22 paid.
23 4. Before assessing any noncompliance fee, the
24 department shall adopt rules to implement the provisions of
25 this paragraph, which shall include a description of
26 activities that constitute Class II violations and the setting
27 of appropriate amounts for the noncompliance fees, based upon
28 the type of violation, but not to exceed $250. Total
29 noncompliance fees assessed shall not exceed $1,000 per
30 assessment for all violations attributable to a specific
31 facility during any one month.
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1 5. The department's assessment of a noncompliance fee
2 shall be in lieu of any civil action that may be instituted by
3 the department in a court of competent jurisdiction to impose
4 and recover civil penalties for any violation that resulted in
5 the fee assessment, unless the department initiates a civil
6 action for nonpayment of a fee properly assessed pursuant to
7 this paragraph.
8 6. Noncompliance fees collected pursuant to this
9 paragraph shall be deposited in the Ecosystem Management and
10 Restoration Trust Fund. The department may use a portion of
11 the fund to contract for services to help in the collection of
12 fees assessed pursuant to this paragraph.
13 Section 5. Subsections (5) and (6) of section 403.860,
14 Florida Statutes, are amended to read:
15 403.860 Penalties and remedies.--
16 (5) In addition to any judicial or administrative
17 remedy authorized by this part, the department or a county
18 health department that has received approval by the department
19 pursuant to s. 403.862(1)(c) shall may assess administrative
20 penalties for violations of this section in accordance with s.
21 403.121 a noncompliance fee for failure of any supplier of
22 water of a public water system to comply with department
23 requirements for the reporting, in the manner and time
24 provided by department rule, of test results for
25 microbiological, inorganic, or organic contaminants; or
26 turbidity, radionucleides, or secondary standards.
27 (a) For the first and second violations of the
28 microbiological reporting requirements, and for the first
29 violation of other reporting requirements, the fee shall not
30 be assessed until the department has given the supplier at
31 least 30 days to comply with the reporting requirement. The
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1 time shall not begin until the department has given the
2 supplier written notice of the facts alleged to constitute the
3 reporting violation, the specific provision of law, rule, or
4 order alleged to have been violated by the owner or operator,
5 the corrective action needed to bring the facility into
6 compliance, and the potential penalties that may be imposed as
7 a result of the supplier's failure to comply with the notice.
8 For subsequent violations of the microbiological reporting
9 requirements, the department does not have to provide 30-day
10 written notice of the violations prior to assessing a
11 noncompliance fee, provided, however, that if any additional
12 reporting violations occur prior to the expiration of either
13 30-day notice issued by the department, the department must
14 provide the supplier with a 30-day written notice to correct
15 those violations as well. Upon expiration of 36 months, the
16 department shall reinstate the 30-day notice requirements
17 provided in this subsection prior to assessing a noncompliance
18 fee.
19 (b) At the time of assessment of a noncompliance fee,
20 the department shall give the supplier written notice setting
21 forth the amount assessed, the specific provision of law,
22 rule, or order alleged to be violated, the facts alleged to
23 constitute the violation, the corrective action needed to
24 bring the party into compliance, and the rights available
25 under chapter 120 to challenge the assessment. The assessment
26 shall be final and effective unless an administrative
27 proceeding is requested within 20 days after receipt of the
28 written notice, and shall be enforceable pursuant to s.
29 120.69.
30 (c) Before assessing a noncompliance fee, the
31 department shall adopt rules to implement the provisions of
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1 this subsection. The rules shall establish specific procedures
2 and assessment amounts for noncompliance fees authorized by
3 paragraph (a). Noncompliance fees shall be set on a sliding
4 scale based upon the type of violation, the degree of
5 noncompliance, and the potential for harm. Such rules shall
6 also authorize the application of adjustment factors
7 subsequent to initial assessment to increase or decrease the
8 total amount assessed, such as the good faith efforts or the
9 lack of good faith efforts of the supplier to comply with the
10 reporting requirements, the lack of or degree of willfulness
11 or negligence on the part of the supplier, the economic
12 benefits associated with the supplier's failure to comply with
13 the reporting violation, the supplier's previous history of
14 reporting violations, and the supplier's ability to pay the
15 noncompliance fee.
16 (d) For microbiological reporting requirements, no
17 noncompliance fee shall exceed $250, and total noncompliance
18 fees assessed shall not exceed $1,000 per assessment for all
19 reporting violations attributable to a specific facility
20 during any one month.
21 (e) For violations of reporting requirements other
22 than microbiological, the fee shall be no greater than $50 per
23 day for each day of violation, and the total amount assessed
24 shall not exceed $2,000.
25 (f) The department's assessment of a noncompliance fee
26 shall be in lieu of any civil action which may be instituted
27 by the department in a court of competent jurisdiction to
28 impose and recover civil penalties for any violation that
29 resulted in the fee assessment, unless the department
30 initiates a civil action for nonpayment of a fee properly
31 assessed pursuant to this subsection.
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1 (g) No noncompliance fee may be assessed unless the
2 department has, within 90 days of the reporting violation,
3 provided the supplier written notice of the violation.
4 (6) The department is authorized to assess
5 administrative penalties for failure to comply with the
6 requirements of the Florida Safe Drinking Water Act.
7 (a) Prior to the assessment of an administrative
8 penalty, the department shall provide the public water system
9 a reasonable amount of time to complete the corrective action
10 necessary to bring the system back into compliance.
11 (b)1. At the time of assessment of the administrative
12 penalty, the department shall give the public water system
13 notice setting forth the amount assessed, the specific
14 provision of law, rule, or order alleged to be violated, the
15 facts alleged to constitute the violation, the corrective
16 action needed to bring the party into compliance, and the
17 rights available under chapter 120 to challenge the
18 assessment. The assessment shall be final and effective,
19 unless an administrative hearing is requested within 20 days
20 after receipt of the written notice, and shall be enforceable
21 pursuant to s. 120.69.
22 2. The department shall adopt rules to implement the
23 provisions of this subsection. The rules shall establish
24 specific procedures for implementing the penalties and shall
25 identify assessment amounts. The rules shall authorize the
26 application of adjustment factors for the purpose of
27 increasing or decreasing the total amount assessed subsequent
28 to initial assessment. Such factors may include the lack or
29 degree of good faith to comply with the requirements, the lack
30 or degree of willfulness or negligence on the part of the
31 owner, the compliance history of the public water system, the
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1 economic benefit derived by the failure to comply with the
2 requirements, and the ability to pay.
3 (c) The amount of the penalties assessed shall be as
4 follows:
5 1. In the case of a public water system serving a
6 population of more than 10,000, the penalty shall be not less
7 than $1,000 per day per violation.
8 2. In the case of any other public water system, the
9 penalty shall be adequate to ensure compliance.
10
11 However, the total amount of the penalty assessed on any
12 public water system may not exceed $10,000 per violation.
13 Section 6. Two years after the effective date of this
14 act, the Department of Environmental Protection shall submit a
15 report to the Legislature describing the number of notices of
16 violation issued by the department seeking the imposition of
17 administrative penalties, the amount of administrative
18 penalties obtained by the department, and the efficiencies
19 gained from the provisions of this act.
20 Section 7. This act shall take effect upon becoming a
21 law.
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24 ================ T I T L E A M E N D M E N T ===============
25 And the title is amended as follows:
26 On page 1, line 1 through page 4 line 2
27 remove from the title of the bill: all of said lines
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29 and insert in lieu thereof:
30 An act relating to environmental control;
31 amending s. 369.25, F.S.; granting the
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1 Department of Environmental Protection
2 additional enforcement powers for aquatic plant
3 control; amending ss. 403.121, 403.131,
4 403.727, 403.860, F.S.; revising judicial and
5 administrative remedies for violations of
6 environmental laws; providing for
7 administrative penalties; requiring the
8 Department of Environmental Protection to
9 report to the Legislature; providing an
10 effective date.
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